Bombers' secret deal exposed

Date: March 28 2013

Roy Masters

A proposed deal between the Australian Sports Anti-Doping Authority and Essendon whereby Bombers players would escape doping sanctions with zero penalty, while Cronulla players would be given a minimum six-month ban, was aborted after protests from lawyers acting for ASADA and Cronulla.

The very same day that Australian Rugby League Commission chief executive Dave Smith learnt of a proposed preferential deal to the AFL club, he raised it with Prime Minister Julia Gillard at a pre-arranged meeting in Sydney.

While Smith is now confident any discriminatory deals are off the table, the AFL can be expected to be frustrated that 45 players from one of its most prominent clubs may be suspended for the season.

Rumours of a secret deal have circulated since March 4 after a meeting in Sydney with representatives of the Sharks, ASADA and the NRL. Lawyers acting for Cronulla at the meeting raised the question whether Essendon players had been offered a lesser sanction.

ASADA counsel, John Marshall, SC, denied such a deal would be possible but the following day provided advice to Cronulla's legal team, led by Trish Kavanagh, that this was not the case.

Marshall was so irked by the revelation of a possible zero sanction to Essendon he told Cronulla counsel he was withdrawing from representing ASADA, for whom he had acted for 20 years.

At the time, 14 Cronulla players were considering their options, with 12 expected to accept ASADA's offer of a six-month sanction and another two were tipped to follow. But negotiations stalled as a result of the exposure of the Essendon deal.

Lawyers acting for the Sharks are furious because the settlement could have seen the players back on the field by September. Now, the players are acting individually with their own lawyers, ruling out any prompt, joint resolution.

During the tense meeting, Marshall indicated it would not be possible for the two codes to be treated differently and ASADA officials present nodded accord.

The following morning, Marshall revealed to counsel acting for Cronulla that he had been inadvertently misled and admitted there were preferred terms for Essendon.

He said he had become aware of a letter to Essendon and when Cronulla's counsel asked to forward it to them, Marshall did so. The letter made it clear that if the Essendon players met all of the qualifications asked, a zero sanction would apply.

Under the deal to NRL players, the standard two-year ban would be reduced to one under a ''no significant fault'' defence but this could be further discounted by six months if they provided ''substantial assistance'', including dobbing in teammates and club officials.

It is not clear whether the substances used at both clubs are the same, giving rise to why the sanctions may have been different.

But the prospect of a difference forced Smith to raise it with the Prime Minister.

Eleven days later, as rumours of the AFL's superior deal circulated, Fairfax Media met ASADA chief executive Aurora Andruska in Canberra. Andruska, who had not been at the Sydney meeting, said both codes would be treated equally.

''Whatever I do, I have the scrutiny of [the World Anti-Doping Agency),'' she said. ''We put ourselves up as a world leader in the fight against drugs in sport. How would we look if WADA overturned our sanctions? It would be the worst thing for our international reputation.''

Andruska also said that the ''no fault'' defence could be sustained only during a medical procedure.

Given reports that Essendon players were injected as much as 50 times, this defence would be difficult to sustain. Yet this was a possible outcome for Essendon players, according to the document provided to Cronulla's lawyers.

It was dated 12 days before the document, prepared by a recently appointed ASADA lawyer, was provided to Cronulla counsel on March 5. It begs the question why such a crucial deal, nearly two weeks old, was not revealed at the Sydney meeting.

Asked to explain the conflict, an ASADA spokesman, perhaps relying on the fact it cannot sanction anyone but merely make recommendations on penalty, said: ''ASADA has not offered a zero sanction to any athlete or support person.''

Fairfax Media understands Essendon does not believe a zero sanction was ever an option.

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